Class Action for Concealment of Pacquiao Injury

COME NOW
Plaintiffs Robert Neidl, Victor Bobadilla, Victor Capo, John Assalian, Gerald
F. Alessi, David Braunstein, Joseph Nick Constantino, and Howard Miller (collectively, “Plaintiffs”), by and through
counsel, and state as follows:

I.Introduction

Plaintiffs represent
nearly one-third of the twenty-five putative class actions that have been filed
against Top Rank, Inc. (“Top Rank”), Emmanuel “Manny” Pacquiao (“Pacquiao”),
and other defendants[1]
in fifteen different judicial districts across the United States. Plaintiffs’ actions include:

Plaintiffs join in the
Motion by Plaintiff Jeremy Tjaden, filed on May 8, 2015, requesting that the cases
listed in the Schedule of Actions attached thereto, and any tag-along actions, be
transferred for pre-trial coordination to a single district court pursuant to 28
U.S.C. § 1407 (“Transfer Motion”). Plaintiffs
oppose transfer to the Central District of California, however, and suggest
that the cases instead be transferred to the District of Nevada, where the
events that gave rise to these cases occurred, and where the vast majority of
the defendants and witnesses currently reside and/or are headquartered. Alternatively, Plaintiffs suggest that the
cases be transferred to the Southern District of New York for coordination.

II.Background

These cases arise
from a professional boxing match (the “Match”) that took
place on May 2, 2015 at the MGM Grand Garden Arena in Las Vegas, Nevada between
undefeated, five-division world champion Floyd “Money” Mayweather, Jr. and
eight-division world champion Manny Pacquiao.
The Match was made available to the public via a “pay per view” telecast
produced jointly by HBO and Showtime, which could be purchased throughout the
majority of the United States at a cost of $89.95, with an additional $10
charge for high definition (“HD”). Prior
to the Match, it was predicted that the pay per view event would bring in $270
million in revenue, but it in fact greatly exceeded these expectations,
reportedly bringing in at least $400 million in revenue – more than the Super
Bowl.

The Match itself, however,
was far less impressive. Pacquiao lost
by unanimous decision, with a lackluster performance that was widely panned by
sports writers. After the Match,
Pacquiao’s team revealed to the public – for the first time – that Pacquiao had
fought the Match with a torn rotator cuff in his right shoulder. The injury had occurred in April, and was so
severe that Pacquiao had been unable to train for multiple days and had limited
use of his right arm. Pacquiao himself
spoke to the severity of his injury following the Match, publicly stating “it’s
hard to fight one-handed.” One of his
doctors, Dr. Neal ElAttrache, characterized the injury as a “significant tear”
of the rotator cuff that required surgery and between 9 and 12 months of
rehabilitation.

Pacquiao’s injury was also known to Pacquiao’s
opponent, Floyd Mayweather Jr., and his camp.
Indeed, members of Mayweather’s training team have publically admitted
that they had a “mole” in the Pacquiao training camp, who informed them of his
injury and the fact that Pacquiao’s sparring partners had been sent home with
instructions to keep the injury a secret.
Moreover, Pacquiao himself told members of the Filipino media in a
post-Match news conference that Mayweather targeted his injured shoulder during
the Match, stating: “I’m sure he found out. Somebody leaked it to him [i.e.,
Mayweather]. They knew.”

Despite
the widespread knowledge of Pacquiao’s injury within the boxers’ camps, no one
informed the public of the injury or of its severity, ostensibly so as not to
jeopardize the chance of a multi-million dollar payday. Nor did anyone advise the Nevada State Athletic
Commission of the injury until just hours before the Match, presumably to avoid
the possibility of the Match being cancelled.
This fact was confirmed by Nevada State Athletic Commission Chairman
Francisco Aguilar, who stated in a post-Match news conference that the
Commission knew nothing of any injury to Pacquiao until his camp requested a
painkilling injection in his right shoulder approximately three hours before
the Match. Commission Chairman Aguilar
further stated that if the Commission had been informed of Pacquiao’s injury in
a timely manner, it would have ordered an MRI to confirm the injury and possibly
would have postponed the Match, depending on the severity thereof.

But, rather than disclosing the
injury, Pacquiao’s camp actually took affirmative steps to conceal his torn
rotator cuff from the Commission, representing under oath in an official
medical disclosure form signed by Pacquiao that he had not suffered any injury
to his “shoulders, elbow, or hands that needed evaluation or examination.” Commission Chairman Aguilar has since asked
the Nevada state attorney general’s office to investigate this misrepresentation,
stating:

Disclosure
is a big thing for us, and honesty. The
Commission at some point will have to discuss [Pacquiao’s medical questionnaire].
I’ve got to run through the process with
the [Nevada] Attorney General. But they
do sign that document under the penalty of perjury.

Mayweather
similarly took affirmative steps to conceal Pacquiao’s injury, stating in a
pre-Match interview with Showtime that both fighters were in “tip-top”
shape.

III.Transfer and Coordination Is Appropriate
Here.

Transfer and coordination is
appropriate here because each case that is the subject of the Transfer Motion –
a well as the fifteen or so other cases that have been filed against Top Rank
and Pacquiao – relies on the same core factual allegations: That defendants failed to disclose material
facts relating to the May 2, 2015 boxing Match between Pacquiao and Mayweather.
Specifically, each case alleges that
defendants knew, but failed to disclose, that Pacquiao had suffered a severe
torn rotator cuff injury to his right shoulder approximately one month prior to
the Match, which injury had not healed as of the date of the Match. Each case further alleges that, had the
public been made aware of Pacquiao’s injury, they could have made an informed
choice, interalia, as to whether to purchase the “pay per view”
showing of the match at a cost of between $89.95 and $99.95. As a consequence of defendants’ deceptive
conduct, however, members of the public were misled about the true state of
Pacquiao’s health, and were fraudulently induced to purchase pay per view
showings of the Match at prices set by defendants.

Moreover, although there is some variation
in the specific causes of action asserted in the lawsuits, plaintiffs’ claims
in all of the lawsuits are grounded in fraud, misrepresentation, and unjust
enrichment on the part of defendants.
Further, the cases propose overlapping class definitions. Under these circumstances, transferring the
cases to a single court pursuant to 28 U.S.C. § 1407 will eliminate duplicative
discovery, prevent inconsistent rulings on a number of pre-trial issues
(including class certification), and conserve the resources of the judiciary
and the parties by avoiding much of the same work being performed multiple
times.

Here, as set forth
above and in the Transfer Motion, each of the cases at issue is based on the
same set of facts – specifically, that defendants failed to disclose (or
affirmatively concealed) the fact that Manny Pacquiao had suffered a torn
rotator cuff prior to his May 2, 2015 boxing match with Floyd Mayweather. Moreover, despite pleading different causes
of action, each of these cases is premised on the single allegation that
plaintiffs are entitled to damages as a result of this material
omission/misrepresentation. The evidence
required to prove or disprove these allegations, including documents produced
and witnesses called to testify, will be the same in each case. Consequently, transfer and coordination is
appropriate here.

B. Transfer Will Promote the Convenience of
the Witnesses and the Parties.

Transferring these cases to a single
district will undoubtedly promote the convenience of the witnesses and the
parties. The majority of the relevant witnesses
in these cases will be defendants and their employees. Absent transfer and coordination, these witnesses
would potentially be subject to multiple depositions and testimony at multiple
class certification hearings. Defendants
also would have to produce documents in multiple jurisdictions, in response to
various document requests. Doing these
tasks twenty-five times – one in each case – would no doubt be a significant
burden on defendants. The requested
transfer would minimize the heavy burden that these cases proceeding separately
would otherwise place on defendants.

A single centralized and coordinated
pretrial program will promote fairness and efficiency and “eliminate
duplicative discovery, prevent inconsistent pretrial rulings, including with
respect to class certification; and conserve the resources of the parties,
their counsel, and the judiciary.” Portfolio
Recovery Associates, 846 F. Supp. 2d at 1381. Absent transfer and consolidation, the
district judge in each case would be required to resolve many of the same
pretrial issues, decide similar motions, and oversee parallel discovery.

The transfer would also be convenient
to plaintiffs, as they will be able to coordinate efforts to pursue their cases
against defendants as one, without the need to attend multiple depositions of
the same witness or travel to various districts across the United States to
ensure that their clients’ rights are not adversely affected. Accordingly, a transfer will, on the whole,
enhance the convenience of both the parties and witnesses.

C. Transfer Will Promote the Just and
Efficient Resolution of These Cases.

Because all of these cases arise from the
common nucleus of facts, it is a near certainty that discovery in each will encompass
most, if not all, of the same topics. Transferring
the cases will ensure coordinated discovery and eliminate duplicative discovery
on these and other factual issues. Moreover,
the cases raise a number of overlapping legal issues. For example, multiple cases assert violations
of the consumer fraud statutes of Nevada and California, and nearly every case
asserts common law claims of unjust enrichment. Absent coordination, multiple courts will be
considering and deciding the same legal issues at the same time, risking
inconsistent rulings. See, e.g., In re Tropicana Orange
Juice Mktg. & Sales Practices Litig., 867 F. Supp. 2d 1341, 1341
(J.P.M.L 2012) (“Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings, including with respect to class certification;
and conserve the resources of the parties, their counsel, and the judiciary.”);In re Chrysler LLC 2.7 Liter V-6
Engine Oil Sludge Prods. Liab. Litig., 598 F. Supp. 2d 1372, 1373
(J.P.M.L. 2009) (granting transfer of five putative statewide class claims with
“nearly identical” factual allegations because doing so would allow one judge
to “streamline proceedings and make consistent rulings on discovery disputes,
dispositive motions, and issues relating to experts.”).

Likewise, absent coordination there is a
risk of inconsistent rulings on class certification. Several of the putative
classes overlap. Specifically, at least
eight of pending cases – including the Neidl and Assalian cases –
seek to certify a nationwide class under various causes of action. And a number of cases seek to certify classes,e.g., of California and Pennsylvania consumers. This Panel has held that the presence of such
competing class actions “amplifies the need to have a single judge oversee the
[proceedings].” In re Cuisinart Food
Processor Antitrust Litig., 506 F. Supp. 651, 655 (J.P.M.L. Jan. 16,
1981). Absent coordination, multiple
courts could issue inconsistent rulings about the propriety of class
certification in these cases. See, e.g., In re Portfolio Recovery Assocs., LLC, 846
F. Supp. 2d 1380, 1381 (J.P.M.L. 2011) (noting that centralization would
“eliminate the risk of inconsistent rulings on class certification” where
statewide classes were “subsumed” by nationwide class); In re Charlotte
Russe, Inc., Fair and Accurate Credit Trasnactions Act (FACTA) Litig., 505
F. Supp. 2d 1377, 1378 (J.P.M.L. Aug. 30, 2007) (“Centralization will … prevent
inconsistent pretrial rulings, especially with respect to class
certification[.]); In re Sugar Indus. Antitrust Litig., 395 F. Supp.
1271, 1273 (J.P.M.L. June 2, 1975) (“We have consistently held that transfer of
actions under 1407 is appropriate, if not necessary, where the possibility of
inconsistent class determination exists.”); seealsoDavid F. Herr, Multidistrict Litigation Manual § 5.24 (2012) (explaining
that the existence of potentially conflicting class actions is a “dominating”
factor in favor of transfer). Consequently, transfer and coordination is
appropriate here.

IV. Plaintiffs Seek Transfer to the
District of Nevada.

Plaintiffs suggest
that the Panel transfer these cases for coordination to the District of Nevada
– where at least three cases have been filed – for the following reasons:

A.The Majority of
Defendants Reside or Are Headquartered in Nevada.

In the past, the Panel
has considered where the headquarters of the majority of defendants are located
in selecting a transfer venue. In re
Amino Acid Lysine Antitrust Litig., 910 F. Supp. 696, 699 (J.P.M.L.1995)
(selecting transfer forum based, interalia, on where two of five
defendants’ headquarters were located). Here,
the majority of the defendants reside or are headquartered in Nevada –
defendants Top Rank and Mayweather Promotions are headquartered in Nevada, and
defendants Mayweather, Arum, and Roach all reside there. Thus, it is submitted that this factor
strongly favors MDL consolidation/coordination in Nevada.

B.The Majority of
the Witnesses and Documents Are Most Likely Located in Nevada.

The Panel may also
consider the location of relevant documents and evidence in determining a
transfer venue. In re Corrugated
Container Antitrust Litigation, 441 F. Supp. 921, 924, (J.P.M.L.1977). As indicated above, the majority of the defendants
named in the cases currently proposed for MDL coordination – including two of
the corporate defendants – reside or are headquartered in Nevada. Thus, it is likely that any documents in the
possession of these defendants are also located in Nevada. Moreover, since the Match occurred in Nevada,
it is likely that the vast majority of non-party witnesses who possess
information relevant to plaintiffs’ claims are also located in Nevada, and
would be within the District of Nevada’s subpoena power should these cases be
transferred to that district. Further,
the Nevada State Athletic Commission and the Nevada State Attorney General,
both of whom are investigating (or contemplating investigation of) the facts
surrounding the Match are located in Nevada.
Accordingly, the District of Nevada is the most convenient forum for
these cases, as it is the district where the largest single concentration of
witnesses and relevant documents in these actions are located.

C.Other Factors
Support Transfer to the District of Nevada.

Several other
factors support the transfer of these cases to a coordinated proceeding in the
District of Nevada. It is the district
where the first case was filed. SeeIn re Ortho Evra Prods. Liab.
Litig., 422 F. Supp. 2d 1379, 1381 (J.P.M.L. 2006) (transfer to
district with first filed action that was also relatively centrally located to
the actions). At least two plaintiffs
reside in that district. SeeVanel
Compl. (Ex. B). Although located near
the west coast, Las Vegas – the division where the three District of Nevada
cases are currently pending – has a large, international airport that will facilitate
counsel’s travel to and from the district courthouse.

Moreover, the
District of Nevada has had prior experience handling multi-district litigations,
and the three judges in the district to whom these cases have been assigned –
District Judge Lloyd D. George in the Neidl case, District Judge Andrew P. Gordon in
the Assalian case, and District Judge Miranda M. Du in the Vanel
case – are experienced jurists who are more than capable of handling a complex
litigation such as this one. In
particular, District Judge Lloyd D. George has handled two MDLs in the
past: In re: Republic Mineral Corp.
SEC, MDL 686 and In Re: NOS Communications, Inc. Billing Practices,
MDL 1357. Currently, the District of
Nevada has just two pending MDLs, far less than many of the other districts
where these cases are pending (e.g., there are currently eighteen MDLs
in the District of New Jersey, seventeen apiece in the Northern District of
Illinois and Eastern District of Pennsylvania; fourteen in the Central District
of California; nine in the Eastern District of New York; eight in the Southern
District of Florida; and seven in the Southern District of California).

Finally, as the vast
majority – if not all – of the acts complained of in Plaintiffs’ complaints
occurred in Nevada, there is a distinct possibility that Nevada law may apply
to all claims in these cases. Consequently,
it is submitted that the District of Nevada is the most appropriate venue for
the proposed MDL.

D.In the
Alternative, Plaintiffs Suggest that the MDL Be Assigned to Judge Scheindlin in
the Southern District of New York.

In the
alternative, Plaintiffs suggest the Panel transfer these cases for coordination
to New York City and the Southern District of New York. Two of the named defendants in these cases,
Home Box Office, Inc. and Showtime Networks, Inc. are both located in New York
City, and many of the documents from these two defendants will be located
there.

Furthermore,
for parties not located in New York, relevant witnesses can readily travel to
New York, which is of course a central transportation hub served by three major
airports. Seee.g.In
re Merck & Co., Inc. Sec., Deriv., & “ERISA” Litig., 360 F. Supp.
2d 1375, 1377 (J.P.M.L. 2005) (transferring to a district court that “is
relatively conveniently located for the parties and witnesses taken as a
whole.”). Given that some of the parties
and potential witnesses will be required to travel regardless of where the
related cases are transferred, the ready accessibility and availability of
frequent air service and travel accommodations are another reason for selecting
New York City as the appropriate forum site.SeeIn re Enron Corp. Sec., Derivative & “ERISA” Litig.,
196 F. Supp. 2d 1375, 1376-77 (J.P.M.L. 2002) (transferring litigation to a
district court “in a major metropolitan center that is well served by major
airlines, provides ample hotel and office accommodations, and offers a well
developed support system for legal services.”).AccordIn re Laughlin Products, Inc., Patent Litig., 240
F. Supp. 2d 1358, 1359 (J.P.M.L. 2003) (transferring to “an accessible
metropolitan district”).

The JPML
also considers whether a potential transferee forum has the necessary resources
and expertise to handle the consolidated litigation. Seee.g.,In re Methyl
Methacrylate (MMA) Antitrust Litig., 435
F. Supp. 2d 1345, 1347 (J.P.M.L. 2006) (transferring to a district that “is
well equipped with the resources that this complex antitrust docket is likely
to require”); In re Sulfuric Acid Antitrust Litig., 270 F. Supp. 2d
1379, 1380 (J.P.M.L. 2003) (concluding that the transferee forum was “equipped
with the resources that this complex antitrust docket is likely to require”); In
re Ace Ltd. Sec. Litig., 370 F. Supp. 2d 1353, 1355 (J.P.M.L. 2005)
(concluding that the transferee forum “possesses the necessary resources and
expertise to be able to devote the time and effort to pretrial matters that
this docket is likely to require”). The
Southern District of New York is a large urban court well-equipped to handle
this complex litigation.

The
potential transferee judge’s experience is also a factor in determining the
appropriate transferee forum. Seee.g.,In re Vision Serv. Plan Tax Litig., 484 F. Supp. 2d 1356,
1357 (J.P.M.L. 2007) (“[W]e are assigning this litigation to an experienced
jurist with the ability to steer this litigation on a prudent course”); In re African-Am. Slave Descendants Litig.,
231 F. Supp. 2d 1357, 1358 (J.P.M.L. 2002) (transferee forum is proper where
“the judge assigned to the action pending in this district is a seasoned jurist
who can steer this litigation on a steady and expeditious course”); In re
New Motor Vehicles Canadian Export Antitrust Litig., 269 F. Supp. 2d 1372,
1373 (J.P.M.L. 2003) (“[W]e have searched for a transferee judge with the time
and experience to steer this litigation on a prudent course.”). Judge Scheindlin is a highly credentialed and
experienced jurist who has served on the federal bench since 1994 and presided
over numerous complex and multi-faceted cases, and would be an appropriate
judge to preside over this complex litigation.
Judge Scheindlin would undoubtedly administer these cases ably and
efficiently.

V. Conclusion

The cases that are the
subject of the Transfer Motion have substantively identical factual allegations
and similar legal claims, will require duplicative discovery, and have proposed
overlapping class definitions. The
convenience of the witnesses and the parties, and the efficient and just resolution
of these cases are all best served by transferring them for coordination to a
single district court. Consequently, Plaintiffs
Neidl, Bobadilla, Capo, Assalian, Alessi, Braunstein, Constantino, and Miller respectfully
join in the request that the Panel grant the Transfer Motion, and moreover
request that the cases be transferred to the District of Nevada for
coordination.

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